City of Paintsville v. Spears

• Decision Date: 15 March 1932
• Citation: 242 Ky. 762,47 S.W.2d 727
• Parties: CITY OF PAINTSVILLE v. SPEARS.
• Court: Kentucky Court of Appeals

47 S.W.2d 727

242 Ky. 762

CITY OF PAINTSVILLE v. SPEARS.

Court of Appeals of Kentucky

March 15, 1932

Appeal from Circuit Court, Johnson County.

Action by Lucy Spears against the City of Paintsville. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wheeler & Wheeler and Ben H. Vaughan, all of Paintsville, for appellant.

Fred Howes and A. J. Kirk, both of Paintsville, for appellee.

STANLEY C.

This appeal is from a judgment for $1,000 against the appellant city of Paintsville, in favor of Mrs. Lucy Spears, the appellee, for personal injuries sustained by her in March 1930, by reason of a defective sidewalk.

A year or more before the accident, the city had put in a culvert and fill across Happy Hollow branch. A settling of the fill caused a separation in the concrete sidewalk and, though it was subsequently repaired, it later separated and formed a crevice about five or six inches wide and extended across the sidewalk. The pavement was also caused to tilt or incline. Mrs. Spears' home was on the opposite side of the street a short distance above the place where the accident occurred. Her garage was at the edge of the street about opposite the defect in the sidewalk. She seldom crossed over and walked along the pavement and says that she had no knowledge of the defective condition. While going to call on a neighbor she stepped into the hole or caught her foot in it or was caused to slip by reason of the incline in the pavement. The accident occurred about dark and the place was between two street lights, the closest one about forty feet away.

The evidence for the plaintiff was to the effect that the place was shaded by a sycamore tree and was very dark. The defective condition had existed for several months and the attention of the city engineer had been specifically called to it.

The evidence for the city was that the crevice or spread in the pavement was five or six inches wide at one end and about two inches at the other at the time of the accident and that the place was amply lighted. The city engineer and other officials testified that a similar separation in the pavement had been repaired about a year before, but they had knowledge of the fact that the ground had again settled and opened up the pavement and they knew the defect had existed since the previous summer.

While the original petition charged negligence on the part of the city in failing to light and guard the place so as to give warning of the danger, the amended petition charged negligence in replacing the sidewalk and in permitting the described defective condition to remain with actual knowledge and constructive notice thereof.

The appellant insists that it was entitled to a peremptory instruction because the defect was so slight as not to render the city liable for negligence, and that the plaintiff was contributorily negligent because, living in such close proximity to it, she was bound to have known of the hole. The proposition is untenable. With the exception of the issue as to the extent or degree in which the place was lighted, the evidence was all one way and proved negligence on the part of the city.

A municipality is required to maintain its pavements in a reasonably safe condition for the use of the traveling public, exercising care for their own safety. It is a question for the jury, where the defect is of such a character that reasonable men may well differ as to whether or not a sidewalk with that kind of defect is reasonably safe for travel by persons exercising ordinary care for their own safety. City of Louisville v. Dahl, 170 Ky. 281, 185 S.W. 1127; City of Lebanon v. Graves, 178 Ky. 749 199 S.W. 1064, L. R. A. 1918B, 1016; City of Ludlow v Gorth, 214 Ky. 833, 284 S.W. 84. A pedestrian is not required to anticipate danger, but may proceed upon the assumption of a reasonably safe condition. Foreman v. Western Union Telegraph Company, 228 Ky. 300, 14 S.W.2d 1079. It is usually a question for the jury in case of an accident whether he was at the time proceeding with proper care for his own safety. City of Providence v. Hunter, 231 Ky. 72, 21 S.W.2d 135. The relative duties of the parties were submitted to the jury by appropriate instructions, and the jury found that the defect...